Jaideep Sangwan & Ors vs Sumit Chadha & Ors
2011 Latest Caselaw 3837 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Date of decision: 9th August, 2011


+                         CS(OS) No.90/2010


JAIDEEP SANGWAN & ORS                            ..... Plaintiffs
              Through Mr. Kishore M. Gajaria, Adv. with
                     Mr. Piyush Sachdeva, Adv.


                                Versus


SUMIT CHADHA & ORS                               ..... Defendant
              Through Mr.Rahul S. Sahay, Adv. for D-5 to 8.
                     Mr. Amit S. Chadha, Sr. Adv. with
                     Mr. Kunal Sinha, Adv. for D-10.
                     Mr. Pawan Mathur, Adv. for DDA.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL

       1.

Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the No Digest?

GITA MITTAL, J (Oral)

1. Costs in terms of the order dated 17th February, 2011 have not

been paid. Learned counsel for the plaintiffs submits that the plaintiffs

do not wish to file the replication.

2. In this view of the matter, pleadings are complete.

3. The record shows that some original documents have been

received from the plaintiffs on 29th January, 2010. No copy thereof has

been furnished to the defendants. Let copy of the documents filed by

the plaintiffs be furnished to the defendants within one week from

today.

4. Affidavit of admission/denial stated to have been filed by the

plaintiffs is not on record. The defendants are permitted to file the

affidavit of admission/denial within five weeks.

5. List the matter before the Joint Registrar for marking of exhibits

on 19th October, 2011.

6. The case be listed before court for framing of issues on 8th

December, 2011.

IA No.710/2010

7. The instant suit has been filed seeking specific performance of

an alleged agreement to sell dated 20th February, 2004 by the plaintiffs

in respect of the property bearing no.D-937A, Block D, New Friends

Colony Cooperative House Building Society, New Friends Colony, New

Delhi. As per the documents placed on record, the agreement has been

entered into between Smt. Sita Wanti Chadha, widow of Late Shri

Munshi Ram Chadha "through her constituted power of attorney holder

Shri Sumit Chadha" in favour of plaintiff no.1-Jaideep Sangwan and Shri

Rajinder Trehan, plaintiff no.2 herein.

8. The suit has been filed on 18th January, 2010 arraying all the sons

of Late Smt. Sita Wanti Chadha as party defendants.

9. It is noteworthy that Shri Sumit Chadha is a grandson of Smt.

Sita Wanti Chadha and has been arrayed as defendant no.1. Smt. Sita

Wanti Chadha expired on 14th October, 2007.

10. It is noteworthy that in the Agreement to Sell dated 20 th

February, 2004 Smt. Sita Wanti Chadha has been referred to as the

`First Party' and shown as residing at House No.235, Sector 15-A,

Faridabad, Haryana.

11. Some of the material recitals and covenants in the agreement to

sell dated 20th February, 2004 relied upon by the plaintiffs deserve to

be considered in extenso and read as follows:-

"1. That in pursuance of this Agreement to Sell and in consideration of total sum of Rs.22,00,000/- (Rupees Twenty Two Lacs only) The First party has received the full and final sale consideration amount from the Second party, in the following manner:-

      Cheque No. & Date Amount       Drawn on
       (i) 543351           Rs.15,00,000/- ICICI Bank Ltd.
           20/02/2004                       Faridabad Branch
                                           SCF No.58, Sector
                                           15, Faridabad

       (ii)   838604              Rs.7,00,000/- State Bank of
                                                Patiala, Sector-9
                                                Faridabad,
              Total    Rs.22,00,000/-Haryana

The receipt of which the First party admits, confirms and acknowledges hereby, the First party doth hereby sell, convey, transfer and assign all her rights, titles and interests in the said property unto the Second party, absolutely and forever.

2. That the First party has handed over the actual vacant physical possession of the said property to the Second party at the time of signing of this Agreement to Sell.

xxx xxx xxx

6. That the First party doth hereby further covenants with the Second party that the Second party or their nominee/s, shall henceforth quietly and peacefully hold, possess, and enjoy the said property, without any let, hindrance, denial, demand, interruption or eviction by the First party, erstwhile owner, or any other person or persons lawfully or equitably claiming through under or in trust or in relation for the First party and the Second party is free, entitled and authorized to transfer or sell the said property.

xxx xxx xxx

10. That the First party has delivered the relevant title documents pertaining to the said property whatever she had in possession, to the Second party."

12. The agreement to sell also mentions that a general power of

attorney in favour of Shri Sumit Chadha stands registered in the office

of Sub-Registrar VII, Delhi.

13. Along with the suit, the plaintiff filed the present application

seeking grant of ad interim injunction.

14. The defendant nos.1, 2, 4 & 11 had entered appearance

pursuant to the summons in the suit and notice in the application. On

this date, the court had restrained the Delhi Development Authority,

defendant no.11 in the suit from passing any order in respect of the

mutation of the property (If it had already not been made). The

defendant nos.1, 2, 4 & 11 have not filed written statement in the suit

and have not been appearing in the matter as well.

15. According to Mr. Gajaria, learned counsel for the plaintiffs, in

terms of agreement to sell dated 20th February, 2004, the plaintiffs had

paid full consideration of Rs.22,00,000/- to Late Smt. Sita Wanti Chadha

through her attorney Shri Sumit Chadha. It is submitted that based on

the documents in favour of the plaintiffs, they had applied to the DDA

on the 9th March, 2004 for conversion of the suit property to freehold. It

is submitted that pursuant to the demands made by the DDA, an

amount of Rs.8,00,000/- has been paid to the DDA.

16. The matter of conversion, however, did not culminate in any

favourable order from the DDA for the reason that the plaintiffs

received a letter dated 27th January, 2009 from the DDA informing them

that the legal heirs of Smt. Sita Wanti Chadha had applied for

conversion of the suit property in their name. In this background, the

suit was filed on 18th January, 2010.

17. This application has been vehemently opposed on behalf of Shri

Suresh Chander Chadha, defendant no.10.

18. I find from the record that as per the claim of the defendants,

50% of the suit property had devolved on Shri Harish Chander Chadha

who had been arrayed as defendant no.9. For the failure of the

plaintiffs to take steps upon death of defendant no.9 to implead his

legal heir(s) within the period of limitation, the suit qua defendant no.9

stands abated and it was so recorded by the court on 17th February,

2011. It is contended by Mr. Amit S. Chadha, learned senior counsel

appearing for the defendant no.10 that the very genesis of the suit is

completely misconceived and baseless. The defendants have

challenged the documents relied upon by the plaintiffs as forged and

fabricated. The defendant no.10 has also challenged the said

documentation on the ground that the plaintiffs are in collusion with

Shri Sumit Chadha who has colluded so as to deprive late Smt.Sita

Wanti Chadha as well as her legal heirs of the fruits from the suit

property. It has been pointed out that Shri Sumit Chadha had allegedly

derived authority to enter into an agreement to sell from the general

power of attorney dated 29th April, 2003. The defendant no.10 has

challenged execution of any General Power of Attorney by Smt. Sita

Wanti Chadha.

19. My attention is drawn to the originals of these documents which

have been placed on record. The defendant no.10 is claiming right, title

and interest in the suit property under a registered Will and testament

by Smt. Sita Wanti Chadha executed on 4th March, 1993. It has further

been pointed out that by this last Will and testament dated 4 th March,

1993, Late Smt. Sita Wanti Chadha had in fact fulfilled the desire and

wish of her husband Late Shri Munshi Ram Chadha as manifested from

the registered Will dated 24th September, 1979 which has also been

placed on record.

20. Perusal of the documents placed by the defendants on record

would show that Smt. Sita Wanti Chadha was signing documents in

Gurmukhi. The same signatures are to be found affixed on the

registered Will photocopy whereof has been placed on record.

21. The defendant no.10 has also placed on record documentation

relating to payment of electricity and water bills; property tax; payment

of insurance policies payment of insurance premium and several other

correspondence to manifest that Late Smt. Sita Wanti Chadha along

with the defendant nos.9 & 10 was residing in the suit property.

22. I also find letters dated 27th July, 1991; 1st October, 1991; 29th

October, 1991; addressed by Smt. Sita Wanti Chadha to the House

Building Society; NDMC records and other correspondence which bears

the signatures of Smt. Sita Wanti Chadha even in 1994. Mr. Amit

Chadha, learned senior counsel has also placed reliance on the wedding

cards with regard to the children of defendant no.10; photographs of

weddings and related ceremonies at the suit property. It is urged that

Smt. Sita Wanti Chadha, defendant no.1 as well as defendant no.2

(mother of defendant no.1) are present in these celebrations.

23. It is submitted that Smt. Sita Wanti Chadha was permanently

residing in the suit property which is manifested from her ration card.

In this background, learned senior counsel for the defendant no.10 has

urged that the perusal of the General Power of Attorney relied upon by

the plaintiffs would show the fraud which has been perpetrated in

respect of the suit property. It has been pointed that Smt. Sita Wanti

Chadha has been reflected therein as if she was a resident of House

No.235, Sector 15-A, Faridabad, Haryana. It is further pointed out that

the general power of attorney does not even contain any signatures of

the executant.

24. The third aspect which has been pointed out as a suspicious

circumstance is the fact that the said general power of attorney is

witnessed by one Shri Deepak Trehan who is resident of 326, Sector 15-

A, Faridabad, Haryana. As per the General Power of Attorney as well as

the plaint, Shri Rajinder Trehan-the plaintiff no.2 is a resident of 326,

Sector 15-A, Faridabad, Haryana. In answer to the question by this

court, Mr. Gajaria, learned counsel for the plaintiffs has very fairly

conceded that Deepak Trehan is the son of plaintiff no.2. Thus, prima

facie, it would appear that even though Smt. Sita Wanti Chadha was

residing at the suit property, she has been mischievously reflected as

residing with the defendant no.1 at Faridabad. The fact that Shri

Deepak Trehan, son of the plaintiff no.2 has witnessed the said attorney

and the agreement to sell is executed in favour of his father Shri

Rajinder Trehan prima faice suggests that the transactions were a part

of the prior design.

25. So far as the agreement to sell dated 20th February, 2004 is

concerned, as noticed hereinabove, the same also incorrectly reflects

that Smt. Sita Wanti Chadha was residing at the same address at

Faridabad. This document has also not been signed by Smt. Sita Wanti

Chadha. On the contrary, the same has been executed by Shri Sumit

Chadha acting as her general power of attorney.

26. As noticed above, the documents reflect that the suit property

bearing no.D-937 A, Block D, New Friends Colony, New Delhi

admeasuring 472 sq. yards as per the agreement to sell, has been sold

for a consideration of Rs.22,00,000/-. Even in February, 2004, when the

property was claimed to have been sold, the amount of consideration is

certainly not reflective of the real worth of the property. However, this

would not influence adjudication of the present application inasmuch as

the parties are yet to record evidence in respect of their respective

cases .

27. Be that as it may, certain covenants in this agreement to sell

certainly render the transaction suspicious. The same are briefly

noticed hereinafter.

28. In clause 1 of the agreement to sell reproduced above, it has

been stated that an amount of Rs.22,00,000/- has been paid by two

cheques. The first payment of an amount of Rs.15,00,000/- has been

mentioned as having been paid by a cheque dated 20th February, 2004

drawn on the ICICI Bank, New Delhi. The second payment has been by

means of a cheque of Rs.7,00,000/- paid on 20th February, 2004 which

is drawn on State Bank of Patiala.

29. To support the encashment of this cheque, the plaintiff has

placed on record the extracts of his bank statement. Perusal thereof

would show that the cheques have been paid in the name of Shri Sumit

Chadha. There is not a single document on record which prima facie

suggests that any amount has been received by Late Smt. Sita Wanti

Chadha as sale consideration pursuant to the said agreement to sell.

30. I also find that in clause 2 & clause 6 of the said agreement to

sell, it has been stated that the seller has handed over "actual vacant

physical possession of the said property to the plaintiffs at the time of

signing of this agreement to sell" (Page 47). This is reiterated in clause

6 wherein it is stated that the plaintiff or their nominee/s shall

henceforth quietly and peacefully, hold, possess, and enjoy the said

property.

31. Mr. Chadha, learned senior counsel for the defendant no.10 has

vehemently challenged this statement in the agreement to sell and has

contended that Smt. Sita Wanti Chadha; with her two sons defendant

nos.9 & 10 and their families have all along been in possession of the

suit property. 32. This has been countered by Mr.Gajaria, learned

counsel for the plaintiffs who has placed reliance on an alleged writing

purportedly executed by Late Smt. Sita Wanti Chadha on the 25th of

February, 2004 which in effect is an alleged request by Late Smt. Sita

Wanti Chadha to the effect that she is a senior citizen; that she has no

other house except the said property and during her lifetime, wishes to

stay in the house. She also confirms the agreement to sell in this

document and also that she has handed over possession to the

purchase with whose consent she was wishing to continue to stay in

this house".

33. It is important to note that this document relied upon by the

plaintiffs also bears only a thumb impression. The document is not

witnessed by any family member of the deceased Smt. Sita Wanti

Chadha but by one Shri Karan Singh, a resident of 501, Sujhav Colony,

Ballabhgarh, Faridabad, Haryana. The defendant no.10 has challenged

this document and submitted that it was never executed by Late Smt.

Sita Wanti Chadha.

34. I also find that the plaintiffs have placed on record an alleged

possession letter dated 20th February, 2004 executed between plaintiffs

on the one hand and the defendant no.1 on the other wherein it is

stated that vacant and physical possession of the property had been

handed over to the plaintiffs in terms of the agreement to sell dated

20th February, 2004 in the presence of two witnesses. The contents of

the letter dated 25th February, 2004 are in blatant contradiction to the

certification contained in the possession letter dated 20th February,

2004.

35. Yet another material factor which this court is required to take

into consideration and which has bearing on the prayer for grant of ad

interim injunction is the fact that the plaintiffs have placed reliance on

the agreement to sell dated 20th February, 2004. There is no

explanation at all to explain the delay till 18th January, 2010 when the

suit has been brought. The plaintiffs have not addressed any

communication to Late Smt. Sita Wanti Chadha or any of the

defendants to seek specific performance of an agreement to sell.

36. Mr. Gajaria, learned counsel for the plaintiffs has sought to

explain the delay in bringing the suit on the fact that the plaintiff no.1 is

the citizen of United States of America and he was frequently travelling

abroad. It has also been asserted that the plaintiff was taking steps to

get the property converted to freehold so that the execution of the sale

deed could be effected. It is urged that so far as the leasehold property

is concerned, it may not have been permissible execution of the sale

deed. In my view, these submissions are really of no assistance to the

plaintiffs so far as the grant of interim injunction is concerned. This

explanation would bear consideration at the time of moulding equities

at the stage of granting final relief. However, at this stage, the

plaintiffs in my view have failed to make out a case of any extreme

urgency which would entitle the plaintiffs to grant of injunction.

37. The above narration would also show that the prima facie the

documents relied upon by the plaintiffs do not inspire confidence.

There is nothing to show that they were ever validly executed or that

they were executed by or on behalf of Smt. Sita Wanti Chadha. There is

no material on record to evidence payment of any consideration to her

in respect of the suit property. On the contrary, it is the plaintiffs case

that they made payments to and in the name of Shri Sumit Chadha.

The writing dated 25th February, 2004 is unexplained and contrary to

the agreememnt to sell as well as possession letter dated 20th February,

2004 which record an event of handing over of possession of the suit

property to the plaintiffs.

38. Clause 10 of the agreement to sell reflects hereinabove also

stipulates that the plaintiffs have received all original documents

relating to the suit property. This position is also not correct.

39. It is pointed out by Mr. Amit Chadha, learned senior counsel for

defendant no.10 that the original lease deed with all original documents

of the suit property are in power and possession of the defendant

no.10. It is submitted that the original lease deed of the suit property

executed by L & DO in favour of Late Shri Munshi Ram Chadha is in

power and possession of defendant no.10. Perusal of the record would

show that this submission of the defendants is also correct. The

agreement to sell, therefore, contains false recitals.

40. In this background, the plaintiffs have failed to establish any of

the ingredients entitling them to grant of interim injunction. There is no

prima facie case in favour of the plaintiffs nor balance of convenience

or equity in their favour justifying grant of any injunction or

continuation of order which was passed on 4th February, 2010. The

plaintiffs have also failed to make out a case of any irreparable loss or

damage which would have enure to the plaintiffs.

In view of the above, I find no merit in this application which is

hereby dismissed.

The interim order passed on 4th of February, 2010 is vacated.

Dasti.

GITA MITTAL,J AUGUST 09, 2011 aa